Chattisgarh High Court
Lakhan Bandra @ Sarjom vs State Of Chhattisgarh on 30 September, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 29/8/2022
Judgment delivered on 30/9/2022
Criminal Appeal No.1678 of 2018
Lakhan Bandra @ Sarjom S/o Shri Vijay Bandra, Aged
About50 years, R/o Village Sahni, Opposite Padampur
School, Uranv Mohalla, Police StationChakradharpur,
District Chaibasi (Jharkhand)
Appellant
(In Jail)
Versus
State of Chhattisgarh, Through - Police Station
Kotraroad, District - Raigarh (CG)
Respondent
For Appellant: Mr.Rishi Rahul Soni, Advocate
For Respondent/State: Mr.Sudeep Verma, Deputy Government
Advocate with Mr.Anmol Sharma,
Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sachin Singh Rajput
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant herein
under Section 374(2) of the CrPC is directed against
the impugned judgment of conviction and order of
sentence dated 30.10.2017 passed by the learned Second
Special Judge (POCSO), Raigarh, in POCSO Act
2012/18/2016, by which the learned Special Judge has
convicted and sentenced the appellant in the following
manner:
Conviction Sentence
Section 363 of the IPC RI for three years and fine
of Rs.1000/, in default,
additional RI for six
months.
Section 370(5)/34 of Imprisonment for life and
the IPC fine of Rs.5000/, in
default, additional RI for
one year.
Section 374/34 of the RI for six months and fine
IPC of Rs.500/, in default, RI
for one month.
2. Case of the prosecution, in brief, is that 67 months
before 21.1.2016 the appellant took victim No.1 /
(PW5) (daughter of Surender Gagrai) from Kirodimal
Nagar, Raigarh to Delhi by practicing fraud, deception
and inducement and she was sold to coaccused Champai
Munda and thereafter coaccused Champai Munda took
victim No.1 / (PW5) to the house of Monika Chawla
where victim No.1 / (PW5) was engaged as maid
servant and she was compelled to perform household
works, cleaning etc. and thereby victim No.1 / (PW5)
was exploited within the scope of Section 370(1) of
the IPC. Further case of the prosecution is that the
appellant also kidnapped the victim No.2 / (PW17)
(daughter of Bhola Mudliya), aged about 10 years to
Delhi where she was sold to coaccused Champai Munda
and thereafter coaccused Champai Munda took the
victim No.2 / (PW17) to the house of Shanti Golcha
where victim No.2 / (PW17) was forcefully engaged as
maid servant and she was compelled to perform
household works, cleaning etc. and she was harassed
and exploited. Thereafter, FIR was lodged on 21.1.2016
(Ex.P8) by Kalyani (PW4) (mother of victim No.2 PW
17) and consequently on 27.1.2016 victim No.1 / (PW5)
was recovered by baramadgi panchnama (Ex.P12).
Similarly, victim No.2 / (PW17) was recovered on
27.1.2016 by baramadagi panchnama vide Ex.P10. Their
MLC was conducted vide Exs.P15 and P16 respectively.
After due investigation, the appellant only was
chargesheeted for offences under Sections 363/34,
370/34, 374 and 107 of the IPC and Section 12 read
with Section 17 of the Protection of Children from
Sexual Offences Act, 2012 (hereinafter called as
'POCSO' Act) (other four persons are absconded). The
accused / appellant abjured the guilt and entered into
defence.
3. In order to bring home the offence, the prosecution
examined as many as 20 witnesses and exhibited 31
documents Exs.P1 to P31. However, the appellant /
accused examined none in his defence and no document
has been produced in his support.
4. The trial Court upon appreciation of oral and
documentary evidence available on record, by its
judgment dated 30.10.2017 while acquitting the
appellant for offence under Section 12 read with
Section 17 of the POCSO Act convicted him for offence
under Sections 363, 370(5)/34 and 374/34 of the IPC
and sentenced for the aforementioned, against which,
this criminal appeal has been preferred before us.
5. Mr.Rishi Rahul Soni, learned counsel for the
appellant, would submit as under:
(i) That, ingredients of offence under Section 363/34
of the IPC are absolutely missing.
(ii) That, the prosecution has miserably failed to
prove the offence of trafficking under Section 370(5)
of the IPC. Therefore, it is liable to be quashed.
(iv) That, similarly offence under Section 374/34 of
the IPC is also not made out. Therefore, the appeal
deserves to be allowed.
6. On the other hand, Mr.Sudeep Verma, learned Deputy
Government Advocate with Mr.Anmol Sharma, learned
Panel Lawyer for the respondent/State, would support
the impugned judgment and submit that trafficking of a
person that too two minors is extremely serious
offence and in view of evidence adduced on behalf of
the prosecution, the trial Court is absolutely
justified in convicting the appellant for the
aforesaid offences by adducing legal evidence of
clinching nature on record and as such, the criminal
appeal deserves to be dismissed.
7. We have heard learned appearing for the parties and
considered their rival submissions made hereinabove
and also went through the records with utmost
circumspection.
8. The first question for consideration would be, whether
the trial Court is justified in convicting the
appellant for offence under Section 363 of the IPC ?
9. The appellant has been convicted for offence under
Section 363 of the IPC, which is punishable for
kidnapping. Kidnapping has been defined under Section
359 of the IPC. According to Section 359 of the IPC,
kidnapping is of two kinds: kidnapping from India and
kidnapping from lawful guardianship. Section 361 of
the IPC defines kidnapping from lawful guardianship
which states as under:
"361. Kidnapping from lawful guardianship.
Whoever takes or entices any minor under
sixteen years of age if a male, or under
eighteen years of age if a female, or any
person of unsound mind, out of the keeping of
the lawful guardian of such minor or person of
unsound mind, without the consent of such
guardian, is said to kidnap such minor or
person from lawful guardianship."
10.The object of Section 359 of the IPC is at least as
much to protect children of tender age from being
abducted or seduced for improper purposes, as for the
the protection of the rights of parents and guardians
having the lawful charge or custody of minors or
insane persons. Section 361 has four ingredients:
(1) Taking or enticing away a minor or a person
of unsound mind.
(2) Such minor must be under sixteen years of
age, if a male, or under eighteen years or age,
if a female.
(3) The taking or enticing must be out of the
keeping of the lawful guardian of such minor or
person of unsound mind.
(4) Such taking or enticing must be without the
consent of such guardian.
So far as kidnapping a minor girl from lawful
guardianship is concerned, the ingredients are : (i)
that the girl was under 18 years of age; (ii) such
minor was in the keeping of a lawful guardian, and
(iii) the accused took or induced such person to leave
out of such keeping and such taking was done without
the consent of the lawful guardian.
11. The Supreme Court while considering the object of
Section 361 of the IPC in the matter of S.Varadarajan
v. State of Madras1, took the view that if the
prosecution establishes that though immediately prior
to the minor leaving the father's protection no active
part was played by the accused, he had at some earlier
stage solicited or persuaded the minor to do so and
further held that if evidence to establish one of
those things is lacking it would not be legitimate to
infer that the accused is guilty of taking the minor
out of the keeping of the lawful guardian and held as
1 AIR 1965 SC 942
under:
"It would, however, be sufficient if the
prosecution establishes that though immediately
prior to the minor leaving the father's
protection no active part was played by the
accused, he had at some earlier stage solicited
or persuaded the minor to do so. If evidence to
establish one of those things is lacking it
would not be legitimate to infer that the
accused is guilty of taking the minor out of
the keeping of the lawful guardian merely
because after she has actually left her
guardian's house or a house where her guardian
had kept her, joined the accused and the
accused helped her in her design not to return
to her guardian's house by taking her along
with him from place to place. No doubt, the
part played by the accused could be regarded as
facilitating the fulfilment of the intention of
the girl. But that part falls short of an
inducement to the minor to slip out of the
keeping of her lawful guardian and is,
therefore, not tantamount to "taking"."
12.Reverting to the facts of the present case in light of
ingredients of offence under Section 361 of the IPC
which is punishable under Section 363 of the IPC and
as well as the principles of law laid down by the
Supreme Court in the matter of S.Varadarajan (supra),
it is quite vivid that victim No.1 has been examined
as PW5. In her statement before the Court she (PW5)
has categorically stated that the appellant had taken
her on the pretext of serving at Delhi by train and
she was employed in the house of Monika Chawla where
she worked for four months, but no such money was
given by Monika Chawla to her. However, in cross
examination, she has also stated that while going to
Delhi, the appellant, his wife and her friends mousi
was also accompanying her and for the purpose of
working and getting Rs.4000/ she had gone to Delhi.
Mother of victim No.1 Raimuni Gagrai has also been
examined as PW11. Though in para2 of her statement
she has stated that the appellant had sold her
daughter at Delhi, but in her crossexamination, she
has clearly stated that her daughter had gone to Delhi
on her own will and the appellant had not kidnapped
her. She has also stated that the appellant had not
kidnapped daughter of Kalyani (victim No.2 PW17)).
Similarly, victim No.2 (PW17) has stated in her
statement before the Court that the appellant had
taken her from Kirodimal Nagar to Raigarh and Raigarh
to Delhi for roaming here and there. In para10, she
has clearly stated that the appellant has not forced
her to accompany her and go to Delhi. Similarly,
Kalyani (PW4) (mother of victim No.2) has clearly
admitted on being asked leading question on behalf of
the prosecution that for the purpose of learning some
work, the appellant had taken her daughter to Delhi
and on being asked by her, the appellant had informed
her, that after learning work she will come back after
one month. She has also stated in para14 that the
appellant had gone to Police Station Kotra Road for
lodging report and helped her.
13.A careful perusal of the statements of two victims
(PW5 and PW17) and their mothers Raimuni Gagrai
(PW11) (mother of victim No.1 PW5) and Kalyani
(PW4) (mother of victim No.2 PW17), it cannot be
held that the appellant had taken or enticed two
victims within the meaning of Section 361 of the IPC
and therefore, conviction recorded and sentence
awarded to the appellant for offence under Section 363
of the IPC is liable to be set aside.
14.The appellant has also been convicted for offence
under Section 370(5) of the IPC.
15.In order to consider as to whether conviction of the
appellant under Section 370(5) of the IPC is justified
or not, it would be appropriate to notice the
provisions contained in Section 370(1) and (5) of the
IPC which states as under:
"370. Trafficking of person.(1) Whoever, for
the purpose of exploitation, (a) recruits, (b)
transports, (c) harbours, (d) transfers, or (e)
receives, a person or persons, by
First. using threats, or
Secondly. using force, or any other form of
coercion, or
Thirdly.by abduction, or
Fourthly.by practising fraud, or deception, or
Fifthly.by abuse of power, or
Sixthly.by inducement, including the giving or
receiving of payments or benefits, in order to
achieve the consent of any person having
control over the person recruited, transported,
harboured, transferred or received,
commits the offence of trafficking.
Explanation1.The expression "exploitation"
shall include any act of physical exploitation
or any form of sexual exploitation, slavery or
practices similar to slavery, servitude, or the
forced removal of organs.
Explanation 2.The consent of the victim is
immaterial in determination of the offence of
trafficking.
(5) Where the offence involves the trafficking
of more than one minor, it shall be punishable
with rigorous imprisonment for a term which
shall not be less than fourteen years, but
which may extend to imprisonment for life, and
shall also be liable to fine."
16.Trafficking was brought in statute book as a offence
under the Indian Penal Code by Criminal Law
(Amendment) Act, 2013 w.e.f 3.2.2013. By bringing in
the said amendment, the legislature has enlarged the
scope of the offence under Section 370 of the IPC and
included within its purview not just mischief of
slavery, but trafficking in general of minors as also
adults and also forced or bonded labourer,
prostitution, organ transplantation and to some extent
child marriages.
17.For the purposes of this new offence, the offender has
been classified into five categories, thus covering
every aspect of the commission of such offence. A
person can be held liable within the mischief of this
offence, if he either (i) recruits or (ii) transports,
(iii) harbours, (iv) transfers or (v) receives, a
person or persons.
18.Exploitation is at the core of this new offence of
trafficking. This exploitation can be deciphered from
either of the following course of conduct:
(i) use of threats upon the victim who is being
trafficked.
(ii) use of force, or any other form of coercion upon
the victim who is being trafficked.
(iii) by means of abduction of the victim who is being
trafficked.
(iv) by practising fraud, or deception upon the victim
who is being trafficked.
(v) by abuse of power upon the victim who is being
trafficked.
(vi) by inducement of the victim who is being
trafficked, including the giving or receiving of
payments or benefits, in order to achieve the consent
of any person having control over the person
recruited, transported, harboured, transferred or
received.
19.The first explanation that is added to this Section,
further adds to the meaning of exploitation, any act
of physical exploitation or any form of sexual
exploitation, slavery or practices similar to slavery,
servitude or forced removal of organs. The second
explanation added to this Section, takes away the
possibility of the accused from taking a defence of
consent of the victim to any act of physical
exploitation or other form of sexual exploitation,
slavery or practices similar to slavery, servitude or
the forged removal of organs.
20.By order dated 24.6.2016 charge was framed against the
appellant including for offence under Section 370/34
of the IPC, which states as under:
"¼2½ rqeus mlh fnukad le; o LFkku es vo;Ld vfHk;ksD=h dqekjh
'khry eqnqb;k ,oa dqekjh lqdklh xxjkbZ mez dze'k% 10 o"kZ ,oa 14
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ds vxzlj.k ls 'kks"k.k ds iz;kstu ds fy, diV dk iz;ksx djds ;k
izoapuk }kjk ;k mRizsj.kk ds }kjk ifjogu xzke fdjksMhey uxj ls
mUgs fnYyh ys tkdj vkjksih pEibZ eq.Mk dks csp dj mudk
nqZO;kikj fd;kA vkidk mDr d`R; /kkjk [email protected] Hkk-n-fo- ds rgr
naMuh; gS ,oa bl U;k;ky; ds laKku esa gSA"
21.A careful perusal of the aforesaid charge framed by
the learned trial Court against the appellant that
prior to 21.1.2016 he in furtherance of common
intention along with absconded coaccused persons for
the purpose of exploitation and practising
fraud/deception/inducement had transported victims
No.1 / (PW5) and 2 (PW17) from Kirodimal Nagar to
Raigarh and Raigarh to Delhi and sold them to
coaccused Champai Munda and thereby committed the
offence.
22.In order to convict a person for offence under Section
370 of the IPC i.e. trafficking a person, it is sine
qua non that offence must have been committed for the
purpose of exploitation. A person must have been
transported, recruited, harboured or received for the
purpose of exploitation. Explanation 1 also provides
that the expression "exploitation" shall include any
act of physical exploitation or any form of sexual
exploitation, slavery or practices similar to slavery,
servitude, or the forced removal of organs.
23.In the instant case, there is no allegation of sexual
exploitation, slavery or practices similar to slavery,
servitude or the forced removal of organs, if any, of
the two victims.
24.The sole allegation is that the appellant had
compelled victim No.1 and 2 to undertake the household
works in the house of Monika Chawla and Shanti Golcha
as maid servant. Kalyani (mother of victim No.2) has
been examined as PW4. The prosecution has been
allowed to ask leading questions from her. In para6
of her statement before the Court, she has clearly
stated that the appellant had taken her daughter /
victim No.2 to learn some work and on being asked by
her, the appellant has also informed to her that her
daughter will come after one month after learning
work. In her crossexamination, she has also stated
that the appellant had taken her daughter for the
purpose of roaming here and there / for learning work.
Similarly, Raimuni Gagrai (PW11) (mother of victim
No.1) has stated that for the purpose of getting
employment, the appellant had taken her daughter to
Delhi and thereafter sold her. The prosecution has
been permitted to ask leading questions, where she has
clearly stated that her daughter had gone to Delhi on
her own will and the appellant had not forcefully
taken her daughter to Delhi. She has further stated
that the appellant had taken her daughter for earning
Rs.4000/ per month. Similarly victim No.1 (PW5) has
stated that the appellant had taken her to Delhi and
she was asked to work in the house of Monika Chawla
and she was worked for four months in the house of
Monika Chawla, but no such payment was given to her by
Monika Chawla. In para12, she has clearly stated that
on the pretext of getting Rs.4000/ per month, she was
taken to Delhi. Similarly victim No.2 (PW17) has also
been examined. She has stated in her statement before
the Court that for the purpose of roaming Delhi, she
was taken to Delhi from Kirodimal Nagar, Raigarh,
where she has asked to work in the house of Shanti
Golcha and on being unwell, she was allowed by her
employer to call her mother on the telephone. It is
not the case of this victim that she was not paid any
money. In para10, she has clearly stated that she was
not forced to come from Raigarh and go to Delhi. She
voluntarily joined for the purpose of moving and
roaming.
25.A careful perusal of statements of the victim No.1
and 2 (PW5 & PW17) and their mothers i.e. Raimuni
Gagrai (PW11) and Kalyani (PW4), it is quite vivid
that though two victims were transported / transferred
from Raigarh to Delhi and they were asked to work as
servant in the house of their respective owners, but
there is no evidence on record to hold that they were
taken to Delhi using threats or using force or any
kind of coercion or by abducting them or by practising
fraud or deception as their statements would show that
both victims were though admittedly minors had gone to
Delhi of their own for the purpose of learning some
work / to move here and there or for the purpose of
roaming. Though they were allowed to work, but only
victim No.1 was not given salary for 45 months
against her work, which she worked as maid servant,
but there is no evidence on record that they were
taken to Delhi for the purpose of exploitation, which
is sine qua non for conviction for offence under
Section 370(1) of the IPC.
26.The word "exploitation" has been defined in Black's
Law Dictionary, Sixth Edition as under:
"Exploitation. Act or process of exploiting,
making use of, or working up. Utilization by
application of industry, argument, or other
means of turning to account, as the
exploitation of a mine or a forest. State
Finance Co. v. Hamacher, 171 Wash. 15, 17 P.2d
610, 613. Taking unjust advantage of another
for one's own advantage or benefit (e.g. paying
low wages to illegal aliens)."
27.Similarly, the word "exploitation" has been defined in
Longman Dictionary of Contemporary English Edition as
under:
"exploitation 1 a situation in which you treat
someone unfairly by asking them to do things
for you, but give them very little in return -
used to show disapproval: [+of] The film
industry thrives on the sexual exploitation of
women. 2 the development and use of minerals,
forests, oil etc for business or industry :
[+of] the controlled exploitation of resources
| commercial/economic exploitation 3 the full
and effective use of something : [+of] greater
exploitation of these data 4 an attempt to get
as much as you can out of a situation,
sometimes unfairly : [+of] the exploitation of
religion for political ends."
28.Reverting to the facts of the present case in light of
aforesaid discussion, it is quite vivid that
admittedly, two victims (PW5 & PW17) were taken from
Kirodimal Nagar, Raigarh to Delhi, but they have
joined the company of the appellant of their own for
the purpose of getting employment / for the purpose of
roaming at Delhi, which is apparent from the
statements of their mothers Kalyani (PW4) (mother of
victim No.2) and Raimuni Gagrai (PW11) (mother of
victim No.1) and they were asked to perform household
works, but the prosecution has failed to bring home
the offence that they were exploited within the
meaning of Section 370(1) of the IPC particularly
there was no allegation of physical exploitation or
sexual exploitation or they have been subjected to
slavery or practices similar to slavery, servitude or
forced removal of organs. However, salary of one of
the victim (victim No.1) has not been paid, she was
entitled for that, but the appellant cannot be
convicted for offence under Section 370(5) of the IPC.
29.In view of aforesaid legal discussion, we are unable
to hold that the appellant has kidnapped two minor
victims (PW5 & PW17) for the purpose of exploitation
within the meaning of Section 370(1) of the IPC and
therefore, the trial Court is absolutely unjustified
in convicting the appellant for offence under Section
370(1) read with Section 370(5) of the IPC. However,
his conviction and sentence under Section 374/34 of
the IPC are hereby maintained as the prosecution has
clearly established the offence under Section 374/34
of the IPC.
30.Consequently, criminal appeal preferred by the
appellant is partly allowed. Conviction and sentences
of the appellants under Sections 363 & 370(5)/34 of
the IPC are hereby set aside. He be released forthwith
unless required in any other case.
31.However, it is made clear that any observation made in
this judgment is only for the purpose of deciding the
appeal filed by Lakhan Bandra @ Sarjom and any
observation made herein shall not be construed as an
opinion with regard to role of other coaccused
persons who are absconding or they are being tried
separately in the same crime number.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
B/
